May 8, 2007 — Three federal appeals judges on Tuesday sharply questioned the foundation of Sen. Ronald Russell’s suit to nullify last fall’s special Senate session to confirm the territory's first Supreme Court judges.
Although this case will not affect the location of the Supreme Court, it is part of the broader struggle between the Legislature and the executive branch over the higher court spawned by Russell.
A Complex History
The Supreme Court bill, which initially placed the court on St. Thomas, was signed into law by former Gov. Charles W. Turnbull in 2004. The Senate, however, amended the bill in the 25th Legislature to place the court on St. Croix.
While Turnbull subsequently vetoed the amendment, the Legislature overrode the veto, and a few months later, passed another bill appropriating funds for the construction of the court on St. Croix.
A lawsuit filed last July by Turnbull challenged both pieces of legislation, asking the court to declare them unconstitutional based on language included in the Revised Organic Act of 1954.
In late 2006, Turnbull called the special session to force the Legislature to act on his nominees to the first V.I. Supreme Court. In that session, Maria M. Cabret, Rhys S. Hodge and Ive A. Swan were confirmed unanimously. Russell then filed suit, arguing that the special session was not legal.
In January, however, V.I. District Court Judge Curtis Gomez ruled that Russell, as a single senator, did not have standing to file suit over the special session. (See "District Judge Upholds Nominations of Supreme Court Justices").
Russell was dealt another setback a few weeks later, when V.I. Superior Court Judge Leon Kendall agreed with Turnbull's suit that the Organic Act required the court be located in Charlotte Amalie.
However, the 3rd Circuit Court of Appeals gave Russell a glimmer of hope in March when it vacated Gomez's ruling that Russell lacked standing to sue. On Tuesday, the 3rd Circuit heard Russell's argument for themselves.
Federal Judges Appear Unpersuaded
Russell’s attorney and wife, Royette Russell, argued Tuesday that because Turnbull called a special session shortly before last fall’s election, the governor disrupted normal legislative procedures, violating the principle of separation of powers.
“We believe it was a usurpation of the Legislature’s authority,” said Royette Russell. “Turnbull waited until 10 days before the election to call the special session. It’s a separation of powers question. Instead of waiting for the Legislature to advise and consent, they disrupted the normal procedure and presented a fait accompli.”
Judge Walter Stapleton did not seem to agree. “It would seem on the surface that calling a special session would increase the legislative input,” Stapleton said.
“It is a matter of context,” Royette Russell responded. “The Committee on Rules and Judiciary has jurisdiction, but that committee’s role was disrupted by calling the special session.”
Judge Dolores Sloviter was blunt in her appraisal of that argument. “It is not usurpation because it is the distinctive duty of the Legislature to give advice and consent,” Sloviter said. “They exercised that right so there is no violation of the separation of powers.”
The third member of the panel, Judge Franklin Van Antwerpen, was similarly dubious. “Aren’t you trying to get in court what you couldn’t get in the Legislature?” asked Van Antwerpen.
“We are simply saying the special session was illegally convened so the Senate could not ratify an illegal act,” Royette Russell responded.
After both sides pleaded their case and answered questions from the three-judge panel, Sloviter said the court would adjourn and consider the matter. No specific time frame was mentioned for the court to issue its ruling.
In the event the federal judges rule against Russell, the Legislature, as a whole, has appealed separately to the 3rd Circuit regarding Kendall's January ruling in favor of Turnbull.
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